[Federal Register Volume 76, Number 240 (Wednesday, December 14, 2011)]
[Rules and Regulations]
[Pages 77699-77701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32085]


=======================================================================
-----------------------------------------------------------------------

NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102


Special Procedural Rules Governing Periods When the National 
Labor Relations Board Lacks a Quorum of Members

AGENCY: National Labor Relations Board.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The National Labor Relations Board is revising its rules 
governing the consideration of certain pleadings that ordinarily 
require action by a quorum of at least three Board Members. The 
revisions are being adopted to facilitate, insofar as it is possible, 
the normal functioning of the Agency during periods when the number of 
Board members falls below three, the number required to establish a 
quorum of the Board. The effect of the revisions is to provide the 
public with avenues for resolving certain issues, while deferring full 
review by the Board until a quorum has been restored.

DATES: Effective December 14, 2011.

FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive 
Secretary,

[[Page 77700]]

National Labor Relations Board, 1099 14th Street NW., Room 11600, 
Washington, DC 20570. Telephone (202) 273-1067 (this is not a toll-free 
number), 1-(866) 315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION: The National Labor Relations Board is 
revising its rules governing the consideration of certain pleadings 
that ordinarily require action by a quorum of at least three Board 
Members. The revisions are being adopted to facilitate, insofar as it 
is possible, the normal functioning of the Agency during periods when 
the number of Board members falls below three, the number required to 
establish a quorum of the Board. See 29 U.S.C. 153(b); New Process 
Steel v. NLRB, --U.S.--, 130 S.Ct. 2635 (2010). No Notice of Proposed 
Rulemaking (NPRM) is required with respect to this rules revision, as 
it falls under the Administrative Procedure Act's exception to the NPRM 
requirement for regulatory actions involving agency organization, 
procedure, or practice. See 5 U.S.C. 553.
    At present, the rules of the National Labor Relations Board (NLRB) 
provide only for the adjudication of cases and the issuance of 
decisions by the Board when it is composed of three or more members, 
which constitutes the Congressionally-designated quorum of the Board. 
In New Process Steel v. NLRB, supra, 130 S. Ct. 2635, the Supreme Court 
held that Congress empowered the Board to delegate its powers to no 
fewer than three members, and that, to maintain a valid quorum, a 
membership of three must be maintained. Id. at 2640. It can be 
anticipated that, from time to time, the number of individuals 
appointed by the President and confirmed by Congress to serve as 
members of the National Labor Relations Board may fall below three. 
Thus, the Board has determined that the purposes of the National Labor 
Relations Act will best be served, and the Board's Congressional 
mandate will best be carried out, if its rules were revised to refer, 
under those circumstances only, certain motions and appeals to other 
offices of the Board, while preserving for the parties the right to 
ultimate review by the Board when a quorum is restored. In this regard, 
the Board has identified certain classes of disputes that are amendable 
to processing through other Board offices; i.e., Motions for Summary 
Judgment, Motions for Default Judgment, Motions for Dismissal of 
Complaints, and requests for permission to file special appeals will be 
referred to the Chief Administrative Law Judge for ruling, and 
administrative and procedural motions will be referred to the Executive 
Secretary for ruling. In all cases of such referrals, parties will 
retain the right to full Board review by filing a request for review or 
exceptions to the ruling at the appropriate time. Normal time limits 
for filing will apply, and the case will be considered on its merits by 
the Board upon restoration of a quorum.
    It is anticipated that these changes in the rules will serve the 
interest of the public and the parties in the speedy resolution of 
disputes, where that resolution is possible, as well as in the 
litigation of cases before administrative law judges with as few 
disruptions as possible. In addition, the Board anticipates that, as in 
some cases the parties will determine that no exception is warranted, 
these revisions may serve to reduce the backlog of cases that the Board 
will face when a quorum is restored.

Executive Order 12866

    The regulatory review provisions of Executive Order 12866 do not 
apply to independent regulatory agencies. However, even if they did, 
the proposed changes in the Board's rules would not be classified as 
``significant rules'' under Section 6 of Executive Order 12866, because 
they will not result in (1) an annual effect on the economy of $100 
million or more; (2) a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; or (3) significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic or foreign markets. Accordingly, no regulatory 
impact assessment is required.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required for procedural 
rules, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.) pertaining to regulatory flexibility analysis do not apply to 
these rules. However, even if the Regulatory Flexibility Act were to 
apply, the NLRB certifies that these rules will not have a significant 
economic impact on a substantial number of small business entities as 
they merely provide parties with avenues for expeditiously pursuing and 
defending claims before the Board under certain narrow circumstances.

Paperwork Reduction Act

    These rules are not subject to Section 3504(h) of the Paperwork 
Reduction Act (44 U.S.C. 3501) since they do not contain any new 
information collection requirements.

Small Business Regulatory Enforcement Fairness Act

    Because these rules relate to Agency procedure and practice and 
merely modify the Agency's internal processing of certain motions in 
narrow circumstances, the Board has determined that the Congressional 
review provisions of the Small Business Regulatory Enforcement Fairness 
Act (5 U.S.C. 801) do not apply.

List of Subjects in 29 CFR Part 102

    Administrative practice and procedure; Labor-management relations.

    To provide for the normal operation of the Board during periods 
when the number of Board members is insufficient to constitute a 
quorum, the Board amends 29 CFR part 102 as follows:

PART 102--RULES AND REGULATIONS, SERIES 8

0
1. The authority citation for 29 CFR part 102 continues to read as 
follows:

    Authority:  Section 6, National Labor Relations Act, as amended 
(29 U.S.C. 151, 156). Section 102.117 also issued under Section 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)). Sections 102.143 through 102.155 also issued under 
Section 504(c)(1) of the Equal Access to Justice Act, as amended (5 
U.S.C. 504(c)(1)).


0
2. Add subpart X to read as follows:
Subpart X--Special Procedures When the Board Lacks a Quorum
Sec.
102.178 Normal operations should continue.
102.179 Motions for default judgment, summary judgment, or dismissal 
referred to Chief Administrative Law Judge.
102.180 Requests for special permission to appeal referred to Chief 
Administrative Law Judge.
102.181 Administrative and procedural requests referred to Executive 
Secretary.

[[Page 77701]]

Subpart X--Special Procedures When the Board Lacks a Quorum


Sec.  102.178  Normal operations should continue.

    The policy of the National Labor Relations Board is that during any 
period when the Board lacks a quorum normal Agency operations should 
continue to the greatest extent permitted by law.


Sec.  102.179  Motions for default judgment, summary judgment, or 
dismissal referred to Chief Administrative Law Judge.

    During any period when the Board lacks a quorum, all motions for 
default judgment, summary judgment, or dismissal filed or pending 
pursuant to Sec.  102.50 of this part shall be referred to the Chief 
Administrative Law Judge in Washington, DC, for ruling. Such rulings by 
the Chief Administrative Law Judge, and orders in connection therewith, 
shall not be appealed directly to the Board, but shall be considered by 
the Board in reviewing the record if exception to the ruling or order 
is included in the statement of exceptions filed with the Board 
pursuant to Sec.  102.46 of this part.


Sec.  102.180  Requests for special permission to appeal referred to 
Chief Administrative Law Judge.

    During any period when the Board lacks a quorum, any request for 
special permission to appeal filed or pending pursuant to Sec.  102.26 
of this part shall be referred to the Chief Administrative Law Judge in 
Washington, DC, for ruling. Such rulings by the Chief Administrative 
Law Judge, and orders in connection therewith, shall not be appealed 
directly to the Board, but shall be considered by the Board in 
reviewing the record if exception to the ruling or order is included in 
the statement of exceptions filed with the Board pursuant to Sec.  
102.46.


Sec.  102.181  Administrative and procedural requests referred to 
Executive Secretary.

    During any period when the Board lacks a quorum, administrative and 
procedural requests that would normally be filed with the Office of the 
Executive Secretary for decision by the Board prior to the filing of a 
request for review under Sec.  102.67 of this part, or exceptions under 
Sec. Sec.  102.46 and 102.69 of this part, shall be referred to the 
Executive Secretary for ruling. Such rulings by the Executive 
Secretary, and orders in connection therewith, shall not be appealed 
directly to the Board, but shall be considered by the Board if such 
matters are raised by a party in its request for review or exceptions.

    Signed in Washington, DC, on December 8, 2011.
Mark Gaston Pearce,
Chairman.
[FR Doc. 2011-32085 Filed 12-13-11; 8:45 am]
BILLING CODE P